This Bill is being introduced in the shadow of a case challenging the constitutionality of the Judicial Separation and Family Law Reform Act, 1989. As we do not know the grounds for that challenge yet, it is extremely difficult for us to judge the implications of the case. That matter must be resolved if this legislation or any divorce legislation is to stand.
Mr. Justice Ronan Keane once described the influence of the Constitution on family law as sometimes baneful, occasionally ambiguous, and rarely positive. We have already seen the Supreme Court decision on the Matrimonial Home Bill. The challenge to the consititutionality of the Judicial Separation and Family Law Reform Act, 1989 creates a further uncertainty and doubt.
Surely this experience is enough to signal that we live with a Constitution that is outmoded and unable to reflect the needs of modern Irish society. The Constitution was framed in the 1930s, at a time when public attitudes to the family were a world apart from those of today. Even in the past ten to 15 years there has been an extraordinary transformation in the Irish family. We now have couples living together without any noticeable censure. Single parents are a common feature — the idea of giving up one's baby if one is a young, single mother is the exception rather than the rule. The Irish family is smaller, the birth rate has dropped, women are more likely to see themselves as workers as well as mothers.
The rate of marital breakdown has increased enormously. According to the 1986 census, approximately 37,000 people considered themselves separated. In the 1991 census, that figure increased to 55,000 approximately. That is a most dramatic exposition of the change in the Irish family and it is time that our Consititution was modified and changed accordingly. We cannot live for ever with a Constitution that is set in the narrow bigoted confines of the 1930s, nor can we continue to pretend that the non-availability of divorce here has protected us from the phenomenon of marital breakdown.
I note this week that the Minister for Equality and Law Reform referred to possible changes in the Constitution at some future date. However, yesterday at Question Time the Taoiseach appeared to contradict that idea. I hope the Minister develops his approach. We cannot allow progress to be continually stymied because of a failure to change our Constitution. Indeed, we do not know what lies in store in relation to this Bill or the Judicial Separation and Family Law Reform Act, 1989 arising out of the current case.
One element in this Bill concerns me, namely, that it provides for maintenance for spouses in nullity cases where a decision is made in court that there never was a marriage. Even the term "spouse" is inappropriate although it is used in this legislation, presumably for want of a better word.
Surely that sets a question mark over the rights of the so-called common law wife, where a woman cohabits with a man for years and has a family. At present she is not entitled to maintenance nor will she be under this legislation. What difference is there in effect between the two? If there is no difference how can we favour one in legislation and not the other? Does this not raise the spectre of a constitutional case?
This is a complex Bill. Some provisions in it need to be teased out and questions raised and I look forward to having an opportunity on Committee Stage to discuss them.
I welcome the fact that the legal age for marriage has been raised. I do not think anybody would object to that change, although there should be special arrangements to allow for exceptional circumstances regarding the three month wait. The idea of waiting to get married is a good one and is one which reflects a trend in society where people are marrying at an older age. However, this could prove to be a restriction on a traditional way of life from one group in our population, namely, travellers. Travellers often marry very young and to impose an older age limit would require a cultural change in that community.
It is important to note what the Bill does not cover. It is not divorce legislation but it highlights more than anything else how urgent the case is to publish divorce legislation and to put the case for divorce to our people. While legal arrangements must be made, property rights established, maintenance decided upon and the nuts and bolts of ownership sorted out a fundamental question must be addressed also, namely, the provision for the children of a marriage that has broken down. That cannot be addressed so much in legislation as in the provision we make for support services. Often, when a couple are separating, they are absorbed in their feelings, but there is a growing understanding that it is vitally important that they take into account the feelings and emotional needs of their children. This requires an approach different from the traditional avenue for separating couples that leads to the solicitor's door. It requires greater emphasis on mediation, on conciliation as opposed to reconciliation and requires principles such as joint custody, where appropriate, to be established as a matter of course.
The needs of children must be recognised as being of paramount importance. This can be achieved by facing up to the reality of marriage breakdown, by reducing the adversarial potential of divorce proceedings, encouraging mediation as a means to resolve difficulties and particularly by providing legal representation, where necessary, to protect the interests of children.
The provision for dealing with pension rights is an important aspect of the Bill. Section 11 deals with the adjustment of pension rights after the granting of a decree of nullity. Section 12 deals with pension rights after a judicial separation. It is worth noting that the splitting of pensions is only provided in nullity cases. I look forward to an opportunity to consider the Bill in greater detail.
I welcome the provisions that deal with gaps in the 1989 Act and particularly with anomalies in maintenance payments. We all know how women in particular have suffered as a consequence of unscrupulous men who have managed to evade their responsibilities. However, if this Bill is to be significant, it must be followed up by divorce legislation. If it is not, the provisions on nullity will have a negative effect on the resolution of marital breakdown. Nullity should only be a recourse in a minority of appropriate cases. However, as divorce is not available here there is a danger that nullity will become an Irish solution to an Irish problem. I have no doubt that practice has developed because it reflects a provision for a resolution on marital breakdown that is allowed by the Catholic Church. Surely we have moved on from that type of entanglement between Church and State.
In the case of many marriages it is dishonest to say they never existed, even though nullity may provide a decision which allows partners to resolve their personal dilemma. It is better to face up to the need for humane divorce legislation, an entitlement of many thousands of separated people who desire divorce. We cannot disregard the fact that we are debating the Bill in the shadow of a constitutional case. We have seen the effect of a constitutional challenge on the Matrimonial Home Bill. At that time the Minister made considerable efforts to avoid a constitutional case, but he acted on bad advice and, despite his efforts, the Bill fell and women lost out.
On the needs of separated people, we cannot afford to lose because of bad advice or a failure to face up to the complexities of the issue. The Constitution determines the legislation we can produce and that Constitution needs to be changed. We are approaching the end of the 20th century, a time when the people's attitudes are changing and when the principles of equality and civil rights are being challenged by a Constitution drawn up in earlier times when other attitudes prevailed.
The Minister will have the support of all parties for this Bill. He received the same support for the Matrimonial Home Bill and if divorce legislation is based on sound principles it will receive the support of all parties. I fear that unless constitutional questions are adequately answered, that support may not be enough.
